A 2017 Kavanaugh Speech Will Become a Flash Point in Confirmation Fight

The long shadow of Roe v. Wade and Casey v. Planned Parenthood dissenter William Rehnquist will now have an impact on Brett Kavanaugh’s own aspirations to join the Supreme Court.
Photo: David Hume Kennerly/Getty Images

Even as a team of federal prosecutors begins an exhaustive review of every piece of paper generated by Supreme Court nominee Brett Kavanaugh in his Judicial and Executive branch career, one document has quickly surfaced that is certain to become a flash point in the debate over his confirmation. In September 2017, then–Circuit Judge Kavanaugh delivered a formal Constitution Day speech at the conservative American Enterprise Institute that he devoted to the legacy of his “first judicial hero,” the late Chief Justice William Rehnquist. This largely hagiographical tribute to the conservative jurist who rivaled and in some respects exceeded Antonin Scalia in influence reads today like an application to consideration for a SCOTUS appointment by a Republican president. And coincidentally or not, Kavanaugh’s name was added to Donald Trump’s famous exclusive list of SCOTUS prospects less than two months later.

The speech should give pause to anyone who has thought of Kavanaugh as an unbiased, follow-the-law-where-it-leads kind of fellow with no overriding judicial philosophy. Its point of departure is his deep appreciation, dating back to his years as the rare conservative student at Yale Law School, of Rehnquist’s revolt against the alleged excesses (some would call them great constitutional landmarks for progress and justice) of the Supreme Court during and after the Warren Court. “For 33 years, Rehnquist righted the ship of constitutional jurisprudence,” he said.

Kavanaugh then briefly touched on five different areas (criminal procedure, church-state separation, federalism, “unenumerated rights,” and administrative law) in which Rehnquist fought, with mixed success, against the “living Constitution” school that held an evolutionary view of the Supreme Court’s responsibilities for protecting rights and disciplining the states and other branches of the federal government. There will be critics who have reason to express deep concerns about Rehnquist’s, and hence Kavanaugh’s, views in all five areas. But the one most likely to hang fire immediately given the dynamics of the confirmation debate is the topic of “unenumerated rights,” where Rehnquist’s long and futile battle to stop and then reverse Roe v. Wade is the key example.

From the point of view of many, and perhaps most, conservatives, Roe was and remains the supreme example of a liberal Court devising a new constitutional right out of thin air to achieve a desired policy result — in this case a right to privacy that had been recently identified by the Court in Griswold v. Connecticut, a decision that struck down a state ban on sale of contraceptives. Rehnquist wrote a vigorous dissent in Roe and, 19 years later, penned the chief dissent joined by three other justices in the case that ended the most serious threat to Roe, Planned Parenthood v. Casey, writing:

We believe that Roe was wrongly decided, and that it can and should be overruled consistently with our traditional approach to stare decisis in constitutional cases.

Kavanaugh does not see fit to mention in the AEI speech that his own “mentor,” Anthony Kennedy, cast the deciding vote to maintain Roe (while restructuring quite a bit of its practical holdings) in the Casey case. But the fact that he includes Rehnquist’s fight against a constitutional right to an abortion in a laudatory tribute to the former Chief Justice’s legacy will be seen as a smoking gun by those who fear Kavanaugh will succeed where his “first judicial hero” failed.

Now, a careful reading of Kavanaugh’s text shows how he (and his defenders) might evade a charge that he has prejudged a challenge to Roe. Aside from mentioning the power of precedent (e.g., the doctrine of stare decisis inhibiting reversal of the Supreme Court’s constitutional holdings), he places great stress on Rehnquist’s judgment that at the time of Roe there was no basis in the “traditions and conscience of our people” for identifying an unenumerated right to an abortion, the logic being that the overwhelming majority of states reflected the view of the public in banning most abortions. You could make the argument that after 45 years of legalized abortion in the United States, the “traditions and conscience of our people” have shifted, providing a basis now if not then for Roe’s identification of a constitutional right. Between that and stare decisis, it is possible that a Justice Kavanaugh could claim to be true to Rehnquist’s legacy while at least proceeding cautiously on reversing Roe.

The other, and much better known, bit of evidence about Kavanaugh and abortion law, interestingly enough, arose shortly after his AEI speech, and also before his elevation to the Trump SCOTUS list, in a complicated D.C. Circuit case (Garza v. Hargan) involving efforts by an undocumented immigrant in federal custody to secure an abortion against the wishes of her abortion-opposing captors. Kavanaugh helped form the majority of a three-judge panel that overrode a district judge’s order that the woman be set free to terminate her pregnancy — but to the chagrin of some RTLers, he didn’t flatly deny she had a right to an abortion once she had jumped through all the procedural hoops the Feds had imposed in their efforts to run out the clock (the decision was ultimately reversed by the full D.C. Circuit with Kavanaugh dissenting). As Ian Millhiser has observed, as a lower-court judge Kavanaugh was bound by SCOTUS precedents on abortion in a way that SCOTUS itself is not necessarily bound. So the fact that his position in Garza coincided with the result abortion opponents wanted could matter more than his exact reasoning.

If nothing else, the AEI speech in combination with the D.C. Circuit decisions will make it difficult if not impossible for Kavanaugh supporters to pretend that he hasn’t thought long and hard about the constitutional status of legalized abortion. And any notion that he’s some sort of constitutional “moderate” must now contend with Kavanaugh’s own forceful self-description as a disciple of one of the Court’s great reactionaries. Pro-choice Republican senators Susan Collins and Lisa Murkowski must now choose between a willful refusal to pay attention to Kavanaugh’s own words, or demand that he answer some pointed questions about Roe and Casey that might later constrain his and the Court’s willingness to sweep away the right to choose.

As we anticipate the end of Mueller, signs of a wind-down:-SCO prosecutors bringing family into the office for visits-Staff carrying out boxes-Manafort sentenced, top prosecutor leaving-office of 16 attys down to 10-DC US Atty stepping up in cases-grand jury not seen in 2mo

For Boeing and other aircraft manufacturers, the practice of charging to upgrade a standard plane can be lucrative. Top airlines around the world must pay handsomely to have the jets they order fitted with customized add-ons.

Sometimes these optional features involve aesthetics or comfort, like premium seating, fancy lighting or extra bathrooms. But other features involve communication, navigation or safety systems, and are more fundamental to the plane’s operations.

Many airlines, especially low-cost carriers like Indonesia’s Lion Air, have opted not to buy them — and regulators don’t require them. Now, in the wake of the two deadly crashes involving the same jet model, Boeing will make one of those safety features standard as part of a fix to get the planes in the air again.

… Boeing’s optional safety features, in part, could have helped the pilots detect any erroneous readings. One of the optional upgrades, the angle of attack indicator, displays the readings of the two sensors. The other, called a disagree light, is activated if those sensors are at odds with one another.

Boeing will soon update the MCAS software, and will also make the disagree light standard on all new 737 Max planes, according to a person familiar with the changes, who spoke on condition of anonymity because they have not been made public. The angle of attack indicator will remain an option that airlines can buy.

Attorneys for New England Patriots owner Robert Kraft and more than a dozen other defendants charged in a Florida prostitution sting filed a motion to stop the public release of surveillance videos and other evidence taken by police.

Attorneys filed the motion Wednesday in Palm Beach County court. The State of Florida does not agree with the request, according to the filing.

In the motion, the attorneys asked the court to grant a protective order to safeguard the confidentiality of the materials seized from the Orchids of Asia Day Spa in Jupiter, and “in particular the videos, until further order of the court.”

Two years in, White House aides are dismayed to discover the president likes lobbing pointless, nasty attacks at people like George Conway and John McCain

But the saga has left even White House aides accustomed to a president who bucks convention feeling uncomfortable. While the controversies may have pushed aside some bad news, they also trampled on Trump’s Wednesday visit to an army tank manufacturing plant in swing state Ohio.

“For the most part, most people internally don’t want to touch this with a 10-foot pole,” said one former senior White House official. A current senior White House official said White House aides are making an effort “not to discuss it in polite company.” Another current White House official bemoaned the tawdry distraction. “It does not appear to be a great use of our time to talk about George Conway or dead John McCain. … Why are we doing this?

When Mr. Trump was running for president, he promised to personally stop American companies from shutting down factories and moving plants abroad, warning that he would punish them with public backlash and higher taxes. Many companies scrambled to respond to his Twitter attacks, announcing jobs and investments in the United States — several of which never materialized.

But despite Mr. Trump’s efforts to compel companies to build and hire, they appear to be increasingly prioritizing their balance sheets over political backlash.

“I don’t think there’s as much fear,” said Gene Grabowski, who specializes in crisis communications for the public relations firm Kglobal. “At first it was a shock to the system, but now we’ve all adjusted. We take it in stride, and I think that’s what the business community is doing.”

There’s no specific stipulation that Milo must be heard, so it could be worse

President Trump is expected to issue an executive order Thursday directing federal agencies to tie research and education grants made to colleges and universities to more aggressive enforcement of the First Amendment, according to a draft of the order viewed by The Wall Street Journal.

The order instructs agencies including the Departments of Education, Health and Human Services and Defense to ensure that public educational institutions comply with the First Amendment, and that private institutions live up to their own stated free-speech standards.

The order falls short of what some university officials feared would be more sweeping or specific measures; it doesn’t prescribe any specific penalty that would result in schools losing research or other education grants as a result of specific policies.

Tech companies say that it is easier to identify content related to known foreign terrorist organizations such as ISIS and Al Qaeda because of information-sharing with law enforcement and industry-wide efforts, such as the Global Internet Forum to Counter Terrorism, a group formed by YouTube, Facebook, Microsoft, and Twitter in 2017.

On Monday, for example, YouTube said on its Twitter account that it was harder for the company to stop the video of the shootings in Christchurch than to remove copyrighted content or ISIS-related content because YouTube’s tools for content moderation rely on “reference files to work effectively.” Movie studios and record labels provide reference files in advance and, “many violent extremist groups, like ISIS, use common footage and imagery,” YouTube wrote.

The cycle is self-reinforcing: The companies collect more data on what ISIS content looks like based on law enforcement’s myopic and under-inclusive views, and then this skewed data is fed to surveillance systems, Bloch-Wehba says. Meanwhile, consumers don’t have enough visibility in the process to know whether these tools are proportionate to the threat, whether they filter too much content, or whether they discriminate against certain groups, she says.

Two mystery litigants citing privacy concerns are making a last-ditch bid to keep secret some details in a lawsuit stemming from wealthy financier Jeffrey Epstein’s history of paying underage girls for sex.

Just prior to a court-imposed deadline Tuesday, two anonymous individuals surfaced to object to the unsealing of a key lower-court ruling in the case, as well as various submissions by the parties.

Both people filed their complaints in the New York-based 2nd Circuit Court of Appeals, which is overseeing the case. The two people said they could face unwarranted speculation and embarrassment if the court makes public records from the suit, in which Virginia Giuffre, an alleged Epstein victim, accused longtime Epstein friend Ghislaine Maxwell of engaging in sex trafficking by facilitating his sexual encounters with teenage girls. Maxwell has denied the charges.

Rescue teams in Mozambique are struggling to reach the thousands of people stranded on roofs and in trees and urgently need more helicopters and boats as post-cyclone flood waters continue to rise.

Rescue workers, military personnel and volunteers are rushing to save thousands of Mozambicans before flood levels rise further, but with four helicopters, a handful of boats and extremely difficult conditions, have only been able to save about 413 so far.

“I don’t even know if we’ve made a dent. There are just so many people. The scale is huge. We’re busy doing the best we can,” said Travis Trower from Rescue South Africa, adding that a lot of people had been washed away but those still alive, whom he had seen from helicopter flights, were in a very bad state.

More than 400 sq kilometres (150 sq miles) in the region are flooded, according to satellite images taken by the EU, and in some places the water is six metres (19ft) deep. At least 600,000 people are affected, according to the UN Office for the Coordination of Humanitarian Affairs (OCHA), ranging from those whose lives are in immediate danger to those who need other kinds of aid.

About 40 percent of the District’s lower-income neighborhoods experienced gentrification between 2000 and 2013, giving the city the greatest “intensity of gentrification” of any in the country, according to a studyreleased Tuesday by the National Community Reinvestment Coalition.

The District also saw the most African American residents — more than 20,000 — displaced from their neighborhoods during that time, mostly by affluent, white newcomers, researchers said. The District and Philadelphia were most “notable” for displacements of black residents, while Denver and Austin had the most Hispanic residents move. Nationwide, nearly 111,000 African Americans and more than 24,000 Hispanics moved out of gentrifying neighborhoods, the study found.

In an essay accompanying the study, Sabiyha Prince of Empower DC said the city “rolled out the proverbial red carpet” for tens of thousands of new residents in the past five years. But the new dog parks, bike lanes, condominiums and pricey restaurants that followed, she said, are not viewed as improvements by long-term residents, who can feel isolated because of losing neighbors, social networks and local businesses. Prince, an anthropologist, said longtime Washingtonians tell stories of “alienation and vulnerability in the nation’s capital.”